ACLU Sues Feds To Disclose Secret Surveillance In Criminal Cases

The ACLU sued the Obama administration Thursday, demanding that the Justice Department respond to its request for information about evidence derived from secret surveillance being used in criminal prosecutions.

The lawsuit stemmed from a Freedom of Information Act (FOIA) request that the organization filed in March. The ACLU alleged Thursday that the administration had failed to comply fully with its request.

The surveillance in question -- authorized under the 2008 amendment to the Foreign Intelligence Surveillance Act and commonly known as FAA -- was at the heart of the leaks by former NSA contractor Edward Snowden this summer. At issue is whether the Justice Department must disclose to criminal defendants that some of the evidence against them was originally derived from warrantless surveillance under the FAA.

"In the five years since the FAA was enacted, not a single criminal defendant has
received notice of the government's intent to use or disclose FAA-derived evidence," the ACLU's lawyers wrote. "The failure of these DOJ components to process and release responsive records is of particular concern because the Request relates to a highly controversial surveillance authority whose wisdom, effectiveness, and legality is a matter of intense and ongoing public debate."

As TPM previously reported, the problem of FAA disclosures in criminal cases has been vexing federal prosecutors for the last year. It started when Solicitor General Donald Verrilli assured the Supreme Court last October during oral arguments in Clapper v. Amnesty International that prosecutors would have to disclose to whether FAA surveillance had been used in compiling a criminal case against them -- and the defendant could challenge its constitutionality.

Seizing on a floor speech by Senate Intelligence Committee Chair Dianne Feinstein (D-CA) in which she appeared to refer to prosecutions where such secret surveillance had been used, defense attorneys in two ongoing cases she named then called out prosecutors for not making the disclosures to the defense that Verrilli had said should be made.

The New York Times reported Thursday on the resulting turmoil within the Justice Department. Verrilli won out, arguing that federal prosecutors had no legal basis to deny such FAA disclosure to criminal defendants, and the department plans to inform at least one defendant of FAA surveillance in a case where it has been used, according to the Times.